Media must be rape activists, not bystanders

It’s not enough to report dispassionately on sexual predation. We have to lobby where the law fails

In orientation week of 2008 I had a new group of journalism students working in the Grocott’s Mail newsroom in Grahamstown. We arrived for duty to discover that over the weekend there had been a rape in a local pub and a young man had appeared in court.

The newspaper had covered the court appearance, taken his photograph and made it the front-page story in the Tuesday edition. There was instant horror and worry. “Was this legal?” was the first question at news conference, followed by: “But what if he turns out to be innocent?”

As the consequences unfolded (which involved the realisation that he hadn’t had charges of rape put to him in court and so identifying him was technically illegal, resulting in the newspaper being sued for damages to his reputation), I came to hear stories about this young man’s habitual sexually abusive behaviour.

There was never a trial — the prosecutor decided that there was not enough evidence that a “rape” had taken place. The woman left university, broken and ashamed. The man stayed and got his degree. As a lecturer in journalism, I held on to the principle that “innocent until proven guilty” was not only legal but important to enact as a journalist.

Then, last year, someone put out a simple list of 11 names on one of the Facebook pages Rhodes University students use. Just names, no accusations. It was called #RUReferencelist.

The list itself was enough to galvanise hundreds of students into mounting a two-week protest with barricades and class shutdowns. The police came on to campus, shot at and arrested students, and the university got an interdict against protest action, and is still pursuing women for “kidnapping” men from their residence rooms.

Again I was told stories about serial sexual assault, about habitual predatory behaviour. I was consulted by young women wanting to go public, emboldened by the list to make known that the men who had assaulted them were doing it to others too, and they were not being stopped.

Many of these young men were the university’s finest — leaders and achievers. Many of the women were being serially isolated (the university was treating each case individually and not connecting the serial offences) and therefore disbelieved.

I have known for a very long time that rape is more about the familiar, “normal” man using his power than the dangerous stranger. I have known too that rape victims are victimised again because our laws demand that they accuse and stand up and make the complaint, and be tested for the degree of the harm done to them and the validity of their claim.

But what last year’s protests showed me (and this came mainly from the righteous anger of young women determined not to be fobbed off) was that sexual abuse and assault is deeply endemic in our societies. It is not just the powerful and famous who abuse. More importantly, our systems are completely inadequate to the task of dealing with this underthe-radar predation.

It’s not surprising that the victimised are taking things into their own hands — such as the “Remember Khwezi” protest — and shoving this stuff in all our faces so that we can no longer turn away from it. But it’s one thing for an assaulted woman to weigh up the risks of putting her experience out in public, and another for journalists to figure out what impacts revealing or withholding information will have on a particular situation and on the wider silencing culture that feeds predation.

So it was with interest that I read the Jennifer Ferguson accusations against anti-apartheid activist Danny Jordaan (reported in the Daily Maverick) and the Mail & Guardian story about Sibongile Khumalo’s accusations against former Pan Africanist Congress leader Potlako Leballo.

The interesting thing about the Ferguson article written by Rebecca Davis is the four reasons given for naming Jordaan:

O His name was already in the public domain via social media (so to conceal his name would not have provided him any protection; however, it would have protected the online publication if Jordaan got litigious);

O He is a political figure in the public domain — this is an old journalistic defence but usually not used in cases of sexual assault and rape;

O Strenuous efforts were made to give Jordaan a chance to respond to the article — again; this is a usual journalistic defence, but not usually used for rape accusations; and

O It is highly unlikely that the accusation will ever surface in court.

This last point is the most interesting — not because it speaks to Ferguson’s intention or to the impossibility of something happening so long ago coming to court, but because it touches on the fact that the legal route fails so utterly to address these assaults and stop serial offenders.

In the Ferguson story and the Khumalo story, there are hints that both women know that men with this kind of power do not do this once and then correct themselves. Ferguson apologises if her silence has meant that other women have suffered the same fate.

By publishing her accusations and naming the accused, the Daily Maverick takes a stand and contributes to making visible this form of endemic abuse, recognising that legally it will never be addressed.

In the face of such systematic and egregious legal and social failure, what is the news media’s responsibility? If we take really seriously that this behaviour is widely prevalent, journalists have to align themselves with efforts not only to make known the situation but also to provoke efforts by lawmakers and policymakers to think and work differently. Just reporting when something becomes known and staying within the tracks of the legal obligations, I think, is no longer conscionable (if it ever was).

To go even further, why are we comfortable with the abysmal performance of the police and courts (and employers and universities) in prosecuting sexual assault? We use the reprehensible statistics so frequently that they become the norm in our minds. How is it possible that we think this level of failure is okay?

It’s not surprising that social media have become the perfect vehicles for women to speak out about their assaults because they afford them control over what they want to say and a community to speak to; a listening, believing community.

Some of the research I’ve done has involved reading the arguments about whether “naming and shaming” and “social media vigilantism” is right and proper. In the absence of functional, socially sanctioned redress, “vigilantism” is going to flourish. Why should women remain silent in the face of such major malfunction?

But this isn’t the concern of journalism. The concern is how to show through reportage that the situation is serious and worth attention, and that believing the victims and reporting their experiences is critical.

As to the issue of naming and defamation: I return to an article written by Helen Scott, professor of private law at the University of Cape Town, in April 2016. Scott said of the #RUReferencelist that, although accusing someone of being a rapist is no doubt defamatory, the defence would be “statements which are both true and in the public interest”. She elaborated: “The standard of proof — ‘on the balance of probabilities’ — is lower than that applied in criminal cases — ‘beyond reasonable doubt’ — and could potentially be satisfied by victims’ testimony.

“Another important defence is that of privilege. This protects statements made by someone who is under a moral or legal duty to make them … It could be argued that those who originated and circulated the list were under a moral duty to do so and that their proper audience — those with an interest in hearing the allegations, or a duty to hear them — is not only the police and university authorities but [also] the greater public.

“This argument assumes that the criminal justice system cannot provide adequate redress to the victims of rape, and that for this reason direct action against rapists is justified.”

The recent articles in the Daily Maverick and the M&G are necessary. Women who make these allegations must be seen to be believed in the public domain. But a second step is necessary too: journalists must decide whether to name the perpetrators — because of the failures of the criminal justice system. But this should be done mindfully. The example provided by Davis in making explicit the decision to publish is a useful model.

It’s time that journalists (and their employers and lawyers) do the right thing about rape and sexual assault and defend this stance.

As an educator of emerging journalists, I now take an activist position. This fundamental social wrong must be addressed by journalism — and it must be (and is) defensible to do so. The law must also be made to be on the right side.